Kidnapping from lawful guardianship.—

Whoever takes or entices any minor under sixteen years of age, if a male, or under eighteen years of age, if a female, or any person of unsound mind, away from the care of the minor’s or person’s legal guardian, without the consent of the guardian, is said to have kidnapped the minor or person from legal guardianship.

Explanation—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or another person.

Exception— This section does not extend to the act of any person who in good faith believes himself to be the father of an ille­gitimate child, or who in good faith believes himself to be entitled to lawful custody of the such child unless such act is committed for an immoral or unlawful purpose. STATE AMENDMENT

S. Vardarajan v. State of Madras 1965 AIR 942, 1965 SCR (1) 243

Facts: A minor girl was living with her father and studying in a college. She had become friendly with the appellant whom she wanted to marry. However, her father did not approve of it and took her to the house of a relative and left her there so that for some time she was kept as far away from the accused as possible. However, on the next day, she telephoned the appellant asking him to meet her. Then they went to the registrar’s office and got registered an agreement to marry. The appellant was convicted under Section 363 and his appeal to the High Court was dismissed. The matter went to the Supreme Court.

Issue: Whether the accused can be said to have “taken” her away from the keeping of her guardian?

Decision: The Court acquitted the appellant on the grounds that there was no evidence that she had left the house at the instance of the appellant. She had herself decided to marry him as at no time the appellant used force. She was on the verge of attaining the majority. Thus, she was capable of thinking for herself.

The following cases were referred to in the court:

  • Abdul Sather’s case (54 M.L.J. 456.) 
  •  R. v. Kumarasami (2 M. H. C. R. 331.) 
  • State v. Harbansing Kisansing (I.L.R. [1954] Bom 784.)
  •  Reg. v. Christian Olifier (X Cox’s Criminal Cases, 402.).
  •  Rex v. James Jarvis (XX Cox’s Criminal Cases, 249.)
  •  Rajappan v. State of Kerala (I.L.R. [1960] Kerala, 481.) 
  • Chathu v. Govindan Kutty (I.L.R. [1957] Kerala, 591)

Adv.Khanak Sharma (D/1710/2023)

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